Article 8 of the European Convention on Human Rights

Article 8 of the European Convention on Human Rights provides a right to respect for one's "private and family life, his home and his correspondence", subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".

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Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

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This article clearly provides a right to be free of unlawful searches, but the Court has given the protection for "private and family life" that this article provides a broad interpretation, taking for instance that prohibition of private consensual homosexual acts violates this article. This may be compared to the jurisprudence of the United States Supreme Court, which has also adopted a somewhat broad interpretation of the right to privacy. Furthermore, Article 8 sometimes comprises positive obligations: whereas classical human rights are formulated as prohibiting a State from interfering with rights, and thus not to do something (e.g. not to separate a family under family life protection), the effective enjoyment of such rights may also include an obligation for the State to become active, and to do something (e.g. to enforce access for a divorced father to his child).

Smith and Grady v United Kingdom (1999) 29 EHRR 493, the investigation into and subsequent discharge of personnel from the Royal Navy on the basis of sexual orientation was a breach of the right to a private life under Article 8.

Rotaru v. Romania (2000) Public information that is systematically collected and stored in files held by a state or its agents falls within the scope of private life.[1]

Gillan and Quinton v United Kingdom (2010) — Stop and search powers granted to police under the ss 44–47 of the Terrorism Act 2000 were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. As such, the Court found the powers not to be ‘in accordance with the law’, in violation of art 8 of the European Convention on Human Rights.[3]

Birmingham City Council v Clue (2010) EWCA Civ 460 29/4/2010 — A challenge to the decision to refuse to provide Ms Clue and her family with essential support pending the UK Border Agency’s determination of her application for indefinite leave to remain in the UK. In a ground breaking decision of the Court of Appeal, the judgment extends the scope of community care provision for families subject to immigration control who seek to remain in the UK on Article 8 ECHR grounds

The notion of private life in the Article 8 is also interpreted as including some duty of environmental protection.[4]

^Rotaru v. Romania (2000) ECHR 28341/95, paras. 43-44: "Moreover, public information can fall within the scope of private life where it is systematically collected and stored in files held by the authorities. That is all the truer where such information concerns a person's distant past…In the Court's opinion, such information, when systematically collected and stored in a file held by agents of the State, falls within the scope of 'private life' for the purposes of Article 8(1) of the Convention."